Frequently asked questions

Patents

WHAT IS A PATENT?

A patent provides a monopoly right for a limited period to prevent others from using, selling, making or otherwise exploiting an invention.

The monopoly right is granted in exchange for disclosure to the public and industry of the technological developments described within the patent.

WHY GET A PATENT?

You worked hard to create your invention. So naturally, you want to protect it.

Without a patent you are powerless to prevent others from using your work for their own commercial interests. Not only that, but patenting transforms an idea into a commercially viable asset that increases the worth of your business.

A patent is crucial for restricting your competitors’ ability to operate in your market place. It can generate revenue and it gives your product range credibility.

HOW LONG DOES MY PATENT LAST?

The Standard Patent is the main way you can protect significant new developments. It gives you a 20-year monopoly.

WHAT IF I NEED A PATENT OVERSEAS?

Our expert team can give you advice and assistance on all intellectual property matters in Australia, New Zealand and the Pacific.

We also have a network of experienced international associates. So we can connect you with well-informed IP protection, advice and local insight across markets worldwide.

Our list of overseas associates – detailing their expertise and technical specifications – is always up to date. We also make sure our clients get the most appropriate and cost-effective advice no matter where in the world you want your business to go and grow.

WHERE DO I START TO GET A PATENT?

The best patenting strategy starts with your Watermark patent attorney.

We can draft a patent specification that meets your needs – no matter how short or long the shelf life of your idea is.

While patenting can be a costly exercise, it saves you money, time and frustration in the future.

HOW LONG DOES THE PATENTING PROCESS TAKE?

The process from priority date to a granted Standard Patent can vary upwards from three years.

MY PRODUCT HAS BEEN ON THE MARKET FOR A WHILE, CAN I GET A PATENT?

We always recommend applying for patent protection before putting any product on the market.

Although the Australian law was changed in 2002 to allow the patenting of an invention which was disclosed less than 12 months before the application date, most foreign countries do not have such “grace periods” and so putting an invention on the market before applying for a patent will, in many cases, also prevent the grant of patents in overseas countries.

WHAT MARKING SHOULD I PUT ON MY PRODUCT TO SHOW THAT IT IS PATENTED?

In Australia, if you have filed a patent application you can mark a product with any word(s) that implies that an application has been made in Australia (eg “patent applied for” or “patent pending”).

Caution should be exercised when marking a product in relation to a provisional patent application. It is an offence to use the words “provisional patent” on a product without indicating that it is an application. That is, the words “provisional patent” are considered to indicate that patent rights have been acquired.

Once you have been granted a patent, you can mark your product with terms such as “patent” or “patented” (eg “Australian patent 2000123456”).

WHAT'S THE DIFFERENCE BETWEEN A PATENT AND A REGISTERED DESIGN?

Design registration safeguards the shape, configuration, pattern or ornamentation of an object. We often advise you to seek both patent and design registration in order to protect your sole rights to market a product.

Think of a kitchen mixer. You can use design registration to protect its appearance and a patent to protect its functionality. Both aspects contribute to the commercial success of a product and both must be registered in order to prevent others from copying them.

Design registration is key to numerous areas of industry, including fashion, fabric design, furniture, homewares, packaging and machinery design. Our team is highly experienced in design registration and can help you defend your unique look across the world.

TRADE MARKS

WHAT IS A TRADE MARK?

A trade mark is anything that is a recognizable symbol of your brand. This can include logos, names, tag lines or packaging.

Despite the common misconception, a company or business name registration is not a trade mark registration and does not bestow any ownership rights. Registering your company or business name satisfies the legal obligations of conducting business under that name but your trade mark is your brand.

Watermark understands every step of the trade mark process so that you can rest assured that your ownership rights are robustly protected.

HOW CAN WATERMARK HELP YOU TRADE MARK?

Our team of trade marks experts provides:

advice on brand creation and trade mark filing strategies

trade mark clearance searches to determine the availability of trade marks for use and registration

filing, prosecution and registration of trade marks

filing, prosecution and registration of foreign trade marks (using our network of overseas associates) and International Registrations using the Madrid Protocol system

trade mark opposition, non-use and revocation proceedings

negotiation and settlement of trade mark disputes

investigation searches and advice on infringement

post registration maintenance

monitoring services

due diligence, audits and portfolio reviews

IS MY TRADE MARK ALREADY IN USE?

It’s crucial that you are aware of what other trade marks exist in the market to avoid infringements. Conducting a thorough search of the market place can be tricky though.

Watermark can undertake a meticulous infringement/availability search prior to you commencing use of a trade mark in a particular jurisdiction. The benefits of our comprehensive search process is twofold:

to identify whether you are at risk of trade mark infringement

to assess the likelihood of you being able to register the trade mark that you propose for use

CAN I SEARCH FOR MY TRADE MARK OVERSEAS?

If you intend to use a trade mark overseas, Watermark can search the online records of various trade marks offices across the globe, including New Zealand, United Kingdom, members of the EU, United States and Canada.

We also have a diverse network of reliable and cost effective international associates that we can work closely with to provide you detailed information on overseas trade marks.

WHERE CAN I FILE A TRADE MARK?

You want your trade mark to have global reach.

Watermark is able to directly file trade mark applications in Australia, New Zealand and Papua New Guinea. We can also secure protection for you in more than 100 countries across the world.

If you wish to file separate national applications in foreign jurisdictions we can use the expert services of a foreign associate.

IP LEGAL

CAN YOU PREPARE A LICENSING AGREEMENT FOR ME?

We can certainly help you with licensing matters and our intellectual property lawyers can negotiate and draft a commercially effective licence agreement for you.

I HAVE RECEIVED A LETTER FROM A SOLICITOR WHICH CLAIMS I'M INFRINGING ANOTHER PERSON'S IP, WHAT SHOULD I DO?

It is important that you do not prejudice your situation by for example replying to the solicitor by way of telephone or letter in a way that discloses information that could be used against you.

The letter that you have received probably gives you a short time to reply. To give you advice on how to reply we would need a copy of the letter that you have received and we would need to discuss the situation with you in detail. If you receive such a letter of demand we recommend that you immediately contact a professional adviser for advice.

WHAT MARKINGS DO I HAVE TO PUT ON MY BOOK/DRAWINGS/PLANS TO MAKE IT COPYRIGHT?

Copyright protection comes into being automatically when a copyrightable work is produced in Australia.

However a few foreign countries require a special form of marking for that Australian copyright to be extended to those countries. The form of marking is the International copyright symbol of a letter C within a circle followed by the first date of publication of the work followed by the name of the copyright owner.